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The Constitutional Vulnerability of American Local Government: the Politics of City Status in American Law, 1986 Wis University of California, Hastings College of the Law UC Hastings Scholarship Repository Faculty Scholarship 1986 The onsC titutional Vulnerability of American Local Government: The olitP ics of City Status in American Law Joan C. Williams UC Hastings College of the Law, [email protected] Follow this and additional works at: http://repository.uchastings.edu/faculty_scholarship Part of the State and Local Government Law Commons Recommended Citation Joan C. Williams, The Constitutional Vulnerability of American Local Government: The Politics of City Status in American Law, 1986 Wis. L. Rev. 83 (1986). Available at: http://repository.uchastings.edu/faculty_scholarship/795 This Article is brought to you for free and open access by UC Hastings Scholarship Repository. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of UC Hastings Scholarship Repository. For more information, please contact [email protected]. Faculty Publications UC Hastings College of the Law Library Williams Joan Author: Joan C. Williams Source: Wisconsin Law Review Citation: 1986 Wis. L. Rev. 83 (1986). Title: The Constitutional Vulnerability of American Local Government: The Politics of City Status in American Law Copyright 1986 by The Board of Regents of the University of Wisconsin System; Reprinted with permission of the WISCONSIN LAW REVIEW. THE CONSTITUTIONAL VULNERABILITY OF AMERICAN LOCAL GOVERNMENT: THE POLITICS OF CITY STATUS IN AMERICAN LAW JOAN C. WILLIAMS* Unlike federal and state governments, American cities have no set place in the American constitutional structure. Consequently, courts and commentators have been able to define the scope of city sovereignty without the constitutional constraints that limit the scope of federal and state power. In this Article, Professor Joan Wil- liams shows that courts and commentators have defined city status by incorporating their individual political beliefs into municipal law. Focusing primarily on the theo- ries of Thomas M. Cooley, John F. Dillon, Justice William Brennan and the Burger Court's conservative majority, the Article shows how each theory resulted from its author's fears of excessive governmental power. The Article also shows that Gerald Frug's influential article The City as a Legal Concept can be viewed as yet another example of how commentators have used the issue of city status as a proxy for their political views. Professor Williams concludes that questions of city authority and liability should be determined by reference to cities' resources and responsibilities, rather than by agendas concerning governmental power in general. Recent Supreme Court cases have suggested that cities and other local units' have some measure of local sovereignty.2 These cases ap- pear to contradict the traditional definition of cities as mere subdivi- sions of the state, with no inherent sovereignty.3 * Associate Professor of Law, American University-Washington College of Law. J.D., Harvard University; Master of City Planning, Massachusetts Institute of Technology. For comments on prior drafts, I am grateful to Burton D. Weschler, Hendrik Hartog, James X. Dempsey, Judith W. Wegner, James P. May and to Norman Williams, to whom this article is dedicated on the occasion of his seventieth birthday. Sally Schiller gave invaluable research assistance. This research was generously supported by the American University Law School Research Fund. 1. Cities, towns and other general-purpose local government units have the same legal status as do counties and the wide variety of water, fire, school and other special-purpose units called "special districts." No single term is available to describe all local government units with identical legal status; I have used "municipalities" and "localities" interchangeably to do so. See infra note 138. This terminological maneuver is not meant to imply that the practice of lumping together these disparate entities into one legal category is logical. It isn't. See infra note 366 and accompanying text. 2. See Gelfand, The Burger Court and the New Federalism:Preliminary Reflections on the Roles of Local Government Actors in the Political Dramas of the 1980s, 21 B.C.L. REV. 763, 789 (1980) (documenting a consistent pattern of Supreme Court deference to local government decisionmaking). Gelfand uses similar terminology in his article ("quasi constitutional doctrine of community self-determination," id. at 837, "quasi constitutional principle of self-rule," id. at 847.) See also Lee, The Federal Courts and the Status of Municipalities, 62 B.U.L. Rav. 1, 51-68 (1982) (documenting emergence of a concept of community autonomy). 3. C. ANTIEAU, 1 MUNICIPAL CORPORATION LAW § 1.01 (1985). HeinOnline -- 1986 Wis. L. Rev. 83 1986 WISCONSIN LAW REVIEW The traditional version of municipal law was crystallized in the late nineteenth century by John F. Dillon.4 Dillon, an early corporate law- yer, had an abiding faith in the market system and a consequent con- cern to limit the scope of governmental power,5 both notions central to modern-day conservatism. 6 Yet the conservative Burger Court major- ity has reached a conclusion opposite from Dillon's on the basic princi- ple of city power. Whereas Dillon strove to limit city power by arguing that cities had no inherent sovereignty, the Burger Court majority has exalted the power of localities through the principle of local govern- ment sovereignty. The current Supfeme Court Justice whose opinions stress cities' lack of inherent sovereignty is Justice William Brennan, who would be as uncomfortable with the political philosophy of John Dillon as he is with that of Justices Burger and Rehnquist.' This Article analyzes this confusing pattern. In doing so, it offers several insights into contemporary constitutional law. It shows first that the Supreme Court is proceeding on two inconsistent theories in recent cases in which localities play a central role. One set of opinions- Justice Brennan's opinions expanding municipal liability in section 1983,8 antitrust9 and inverse condemnation suits' ° -are premised on the idea that cities lack inherent sovereignty. In striking contrast, deci- sions of the conservative majority, including San Antonio v. Rodri- guez" and Milliken v. Bradley, 2 often appear to assume that munici- palities have an inviolable right to local autonomy. 4. See J. DILLON, A TREATISE ON THE LAW OF MUNICIPAL CORPORATIONS (1872). Dil- Ion's treatise was the first major treatise on American municipal law, although a previous treat- ment of municipal law had been published in 1864. POMEROY, AN INTRODUCTION TO MUNICIPAL LAW (1864). 5. See infra notes 78-95 and accompanying text. 6. See infra notes 101-117 and accompanying text. 7. See infra notes 210-15 and accompanying text. 8. 42 U.S.C. § 1983 (1983). See Monell v. Dep't. of Social Servs. of the City of New York, 436 U.S. 658 (1977) (municipalities not immune from suit under 42 U.S.C. § 1983); Owen v. City of Independence, 445 U.S. 622 (1978) (municipalities have no good faith immunity from § 1983). See infra notes 222-44 and accompanying text. 9. City of Lafayette v. Louisiana Power & Light Co., 435 U.S. 389 (1978) (municipali- ties are not immune from the antitrust laws); Community Communications Co. v. City of Boulder, 455 U.S. 40 (1982) (home rule cities not immune from the antitrust laws); see infra notes 245-68 and accompanying text. 10. San Diego Gas & Elec. v. City of San Diego, 450 U.S. 635, 636 (1981) (Brennan, J., dissenting) (municipalities should be liable in damages for overregulation of land by zoning); see infra notes 269-84 and accompanying text. In the Supreme Court's latest (still unsuccessful) effort to decide the inverse condemnation issue on the merits, Williamson County v. Hamilton Bank, Brennan states clearly his continued adherence to his position in San Diego. 105 S.Ct. 1352 (1985). The Supreme Court recently heard oral arguments in yet a fourth case involving inverse condem- nation, MacDonald, Summer & Frates v. County of Yolo and City of Davis, cert. granted, 88 L.Ed. 253, 186 S.Ct. 244 (1984). II. 411 U.S. 1 (1973). 12. 418 U.S. 717 (1974). HeinOnline -- 1986 Wis. L. Rev. 84 1986 1986:83 City Status in American Law Certain decisions of both the conservative majority and Justice Brennan contradict established tenets of constitutional and municipal law. Justice Brennan's opinions advocating an inverse condemnation remedy for unconstitutionally restrictive zoning regulations conflict with the principle of Supreme Court deference to regulatory legisla- tion.13 The decisions of the conservative majority which cut back on the scope of the fourteenth amendment in deference to local autonomy also conflict with basic constitutional principles. Given that the four- teenth amendment allows courts to limit state sovereignty in order to vindicate federal constitutional rights, why should the sovereignty of localities, which are mere subdivisions of states, limit the reach of the 14 fourteenth amendment when states' sovereignty cannot? These critiques of Supreme Court case law may prove useful in litigation to civil rights advocates and proponents of strong land use controls. The Article's main goal, however, is to examine the political and ideological forces that have produced these sharp internal contra- dictions within the law. These forces are examined through an in-depth analysis of the four basic formulations of city status that have emerged since 1870: those of Thomas M. Cooley 5 and John F. Dillon 6 in the nineteenth century, and those of Justice Brennan' 7 and the Burger Court majority"8 today. When these formulations are placed in their historical contexts, a pattern emerges: each author's theory of city sta- tus is closely linked with his desire to rein in excessive governmental power (although Cooley, Dillon, Brennan and the Burger Court major- ity are motivated by quite different nightmares of government run amok). 9 This Article's basic thesis concerning the constitutional vulnerabil- ity of cities begins from the fact that cities-unlike the states or federal government-have no set place in the American constitutional struc- ture.
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